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1 https://wordpress.org/?v=5.3.3&lxb_maple_bar_source=lxb_maple_bar_sourceThis Week at the FCC: May 16, 2020 to May 22, 2020https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-may-16-2020-to-may-22-2020/
https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-may-16-2020-to-may-22-2020/#respondSun, 24 May 2020 16:00:35 +0000https://www.broadcastlawblog.com/?p=7301Continue Reading…]]>Here are some of the FCC regulatory and legal actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

The FCC released the agenda for its June 9 Open Meeting announcing that it will consider an item of interest to TV broadcasters planning to transition to ATSC 3.0, the next generation television transmission standard. The item deals with what the FCC is calling “Broadcast Internet services,” new IP based services compatible with other Internet devices that will allow TV broadcasters to monetize their ATSC 3.0 spectrum in new ways. If adopted at the June meeting, the item, which we summarized in this article on the Broadcast Law Blog, would do two things:

It would allow a broadcaster to enter into spectrum lease agreements with other companies who offer Broadcast Internet services on the spectrum of several television stations in the same market without triggering the Commission’s attribution or multiple ownership rules.

The FCC last week announced that comments are due by June 22 in the review of its video description rules. Video description refers to an audio channel provided to accompany TV programming giving a narration of what is happening on the screen to aid blind or visually impaired persons. Currently, ABC, CBS, Fox, and NBC stations in the top 60 markets must supply video described programming, but under the FCC’s proposed new rules, those requirements would extend to markets 61 through 100 by January 1, 2021, with ten markets being added in the following four years. For more on the proposed rule changes, see our post at the Broadcast Law Blog. (Public Notice)

After announcing the settlement terms earlier this month, the FCC released the details of its consent decree with Sinclair Broadcast Group. The consent decree dealt with (i) disclosure issues around Sinclair’s failed takeover of Tribune Media Company; (ii) the accuracy and completeness of certain Sinclair applications; (iii) complaints of Sinclair’s noncompliance with the good-faith rules for retransmission consent negotiations; and (iv) on-air sponsor identification lapses. Though the Commission ultimately found that Sinclair structured the Tribune deal and made disclosures about its plans according to a good faith interpretation of the Commission’s rules, Sinclair nevertheless agreed to a $48 million penalty and four-year compliance plan to resolve all issues about these matters. (Order) See Broadcast Law Blog articles on the sponsorship identification issue when it was first raised in a 2017 Notice of Apparent Liability (here) and a prior Sinclair issue with retransmission consent negotiations (here).

FCC staff last week clarified, albeit informally as part of a webcast (as part of the NAB Show Express, available on demand here), that stations in states where the primary election date has been pushed back due to public health concerns may be subject to longer lowest unit charge (LUC) periods. In states where the 45-day window opened and then the primary election date was pushed back, a new window begins 45 days before the new date of the primary election. This could potentially result in a nearly 90-day LUC window tied to one election. See our article here from the Broadcast Law Blog where we explained how the postponed primaries would extend LUC windows.

As part of that same webcast, FCC staff reminded stations running special COVID-related public service announcements that featuring a candidate standing for election this year can trigger equal opportunities and public file obligations. If the candidate appearance is on a paid spot, the equal opportunities rights of opposing candidates would be to buy an equal number of paid spots. If the PSAs were run for free, then the candidate’s opponents are entitled, upon request, to the equivalent amount of free airtime. Look for more on this issue in the Broadcast Law Blog this week.

The FCC acted last week in two TV market modification proceedings that are good illustrations of the necessary elements of a petition for a change in the television market to which a county or other geographical subdivision is assigned for determining which stations are local for cable of satellite television carriage purposes. In the first, it rejected a petition submitted by Montezuma County, Colorado to modify the county’s DMA, so the county’s DISH Network customers could receive Denver’s KUSA. The Commission found that the county did not submit enough evidence to prove the need for market modification. In the second, the Commission upheld its Media Bureau’s decision to modify the markets of three Georgia counties, so that DISH and DIRECTV customers in those counties could receive four Atlanta TV stations. The Commission denied the appeal of the Greenville-Spartanburg-Asheville-Anderson DMA TV stations carefully analyzing the factors necessary to support the modification of the market and finding no reason to change the Bureau’s ruling. (Montezuma Market Modification) (Atlanta Market Modification)

The FCC declined to review its decision to cancel the license of KCPM(TV), Fargo, ND. The Media Bureau found that the station failed to transmit a signal for twelve consecutive months, which resulted in an automatic expiration of the license. This is a good reminder for station operators, and especially important for stations that may have gone silent during the current pandemic, to notify the FCC when a station goes silent and to re-commence operations within a year to avoid automatic cancellation of the station’s license. (FCC Letter) See this article from the Broadcast Law Blog about the FCC requirements for notice when a station goes silent, the article here about actions that the FCC can take against stations that fail to operate regularly during a license renewal term, and the article here about the strict interpretation that the FCC gives to Section 312(g) of the Communications Act which provides for the automatic cancellation of a license if a station has been silent for a year unless the FCC finds that preserving the license is necessary for reasons of equity and fairness, a finding rarely made.

]]>https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-may-16-2020-to-may-22-2020/feed/0This Week at the FCC: May 2, 2020 to May 8, 2020https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-may-2-2020-to-may-8-2020/
https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-may-2-2020-to-may-8-2020/#respondSun, 10 May 2020 03:49:57 +0000https://www.broadcastlawblog.com/?p=7280Continue Reading…]]>Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations. Here is this week’s list of significant actions:

The FCC’s Media Bureau last week made it easier for broadcast stations to rehire employees laid off due to COVID-19-related circumstances by granting relief from the broad outreach EEO requirement otherwise required when filling job vacancies. Licensees may re-hire full-time employees who were laid off without first conducting broadcast recruitment outreach if the employees are re-hired within nine months of the date they were laid off. As the economy hopefully turns around, this partial waiver should help stations ramp up their operations to full strength quicker than they would have been able to absent the waiver. (Order)(Broadcast Law Blog article)

Sinclair Broadcast Group (“SBG”) agreed to pay a $48 million penalty—the largest penalty ever paid to the FCC by a broadcaster—and adopt a compliance plan to settle investigations into (1) SBG’s lack of disclosure during its failed merger with Tribune Media; (2) its obligation to negotiate retransmission consent agreements in good faith; and (3) sponsorship identification failures on content produced and supplied by SBG to SBG and non-SBG stations. (News Release)

The FCC released the final agenda for its May 13 Open Meeting, with two items of interest to broadcasters. It is expected that both these items will be adopted before the virtual meeting scheduled for next Wednesday. (Agenda)

The first would modernize and simplify the public notices broadcasters must provide upon the filing of certain applications. This order, if adopted as drafted, would update many of the public notice requirements, end requirements for newspaper public notice, and abolish required license renewal pre-filing announcements (draft of the Report and Order).

The second action deals with regulatory fees. The draft order, despite opposition from VHF station licensees, declines to provide any blanket regulatory fee reductions to these stations as the FCC moves fully to television regulatory fees based on the population served by the TV station rather than the size of the market in which the station operates. The same document sets out for comment the proposed annual regulatory fees to be paid in September 2020 by all FCC regulated entities, including radio and TV stations (draft of the Report and Order and Notice of Proposed Rulemaking).

The Supreme Court granted Prometheus Radio Project more time, until July 21, to file a response to the petitions by the FCC and NAB asking for review of the Third Circuit decision that rolled back the Commission’s 2017 media ownership reforms, including the abolition of the newspaper/broadcast cross-ownership rule. If the request for review is granted, the Supreme Court will take up the case, at the earliest, during its 2021 term. (Time Extension Request)(see this Broadcast Law Blog article for more on the appeal that Prometheus seeks to oppose).

The comment period closed this week in the FCC’s FM “zonecasting” proceeding. The comments were submitted on a petition for rulemaking filed by GeoBroadcast Solutions, asking the FCC to change its rules to permit FM boosters to allow commercials, news reports or other short content to be dropped into their programming that would be different than the programming on the main station. Under the current rules, FM boosters must retransmit 100% of the programming from their originating station. (FM broadcast booster proceeding filings) (see this Broadcast Law Blog article for more information about the zonecasting proposal, and look for another article early this week summarizing the positions taken in the comments).

A Wisconsin television station filed a motion to dismiss the lawsuit brought by the President’s reelection committee claiming that an attack ad from the Priorities USA PAC which was broadcast on the station was defamatory. The motion argued that the campaign could not sustain a claim of defamation over an advertisement the station claimed was political speech protected by law including the First Amendment. (Motion to Dismiss – and watch for a summary in the Broadcast Law Blog this week).

]]>https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-may-2-2020-to-may-8-2020/feed/0$100,000 Penalty in Consent Decree Shows Teeth in Requirement for Good Faith Negotiation of Retransmission Consent Agreementshttps://www.broadcastlawblog.com/2020/05/articles/100000-penalty-in-consent-decree-shows-teeth-in-requirement-for-good-faith-negotiation-of-retransmission-consent-agreements/
https://www.broadcastlawblog.com/2020/05/articles/100000-penalty-in-consent-decree-shows-teeth-in-requirement-for-good-faith-negotiation-of-retransmission-consent-agreements/#respondThu, 07 May 2020 14:28:20 +0000https://www.broadcastlawblog.com/?p=7278Continue Reading…]]>The requirement that television broadcasters and MVPDs (including cable and satellite television providers) negotiate in good faith over the provisions of retransmission consent agreements is often cited in arguments by one side or the other when negotiations over the fees to be paid under those agreements break down. In a consent decree released last week, the FCC showed that the requirement is more than just a few words in the statutes and rules governing these negotiations, reaching an agreement with TV licensee Howard Stirk Holdings, LLC to pay a penalty of $100,000 for violations of those requirements and to also adopt a compliance plan setting up internal corporate controls to ensure that similar violations do not occur in the future.

The consent decree was based on violations described in a decision of the FCC’s Media Bureau released last November (here) finding that 18 television station licensees, operating stations in separate markets, had failed to negotiate retransmission consent in good faith. The Stirk company and the other stations covered by the November decision had used a single negotiating agent who the Bureau found failed to comply with three of the Commission’s nine “per se” good faith negotiating standards set out in Section 76.65(b)(1) of the Commission’s rules. Specifically, the Bureau found that the stations had not operated in good faith based on these perceived violations: (1) refusal to negotiate retransmission consent agreements; (2) refusal to meet and negotiate retransmission consent at reasonable times and locations, or acting in a manner that unreasonably delays retransmission consent negotiations; and (3) failure to respond to a retransmission consent proposal of the other party, including the reasons for the rejection of any such proposal.

In reaching this conclusion, the Bureau pointed to instances where the negotiating agent did not respond to offers for the carriage of single stations in the negotiating group, did not put forward proposals for the carriage of such stations and was slow in responding to proposals put forth by the MVPD and did not respond in detail to those proposals or make meaningful counterproposals. The Bureau, at the time, ordered the stations to negotiate in good faith and reserved questions of liability, indicating that those could be taken up in the future. The future appears to be now in last week’s consent decree, as least for the Strik company.

Takeaways for TV stations? While the FCC will not get into the substance of retransmission consent negotiations (it will not question the economics proposed by either side – see this article from over a dozen years ago where the FCC made that clear), it does require that the parties seriously negotiate over the terms of such carriage. Parties cannot simply say no and not advance proposals as to what they would accept to resolve the negotiations. Parties cannot unilaterally cut off negotiations. And the obligation is one that is unique to each station – so unrelated stations cannot join together and refuse to even consider deals offered for any particular station. This decision shows that there are real teeth in these regulations – and penalties may follow for violation of the Commission’s standards.

]]>https://www.broadcastlawblog.com/2020/05/articles/100000-penalty-in-consent-decree-shows-teeth-in-requirement-for-good-faith-negotiation-of-retransmission-consent-agreements/feed/0Record Companies Respond to FCC Commissioner on Payola – What Should Broadcasters Learn from the Responses?https://www.broadcastlawblog.com/2020/04/articles/record-companies-respond-to-fcc-commissioner-on-payola-what-should-broadcasters-learn-from-the-responses/
https://www.broadcastlawblog.com/2020/04/articles/record-companies-respond-to-fcc-commissioner-on-payola-what-should-broadcasters-learn-from-the-responses/#respondWed, 29 Apr 2020 16:19:15 +0000https://www.broadcastlawblog.com/?p=7264Continue Reading…]]>The responses by the major record labels to Commissioner O’Rielly’s inquiry into allegations of payola practices (see our article here) were published last week while we were all distracted with pandemic issues. While the responses (available here on the Commissioner’s twitter feed) were perhaps not surprising – saying that the record labels do not engage in any on-air pay-for-play practices where the payment is not disclosed – they nevertheless highlight some practices that should be observed at every radio station. As I have said in many seminars to broadcasters around the country when talking about FCC sponsorship identification requirements, if you get free stuff in exchange for promoting any product or service on the air, disclose that you got that free stuff. As made clear in these responses, when the record companies give free concert tickets or similar merchandise to a radio station for an on-air giveaway to promote a concert or the release of new music by one of their artists, they agree with the station to reveal on the air that the record company provided the ticket or merchandise that is being given away.

The responses also indicate that these record companies do not provide musical artists to play at station events with any agreement – explicit or implicit – that the station will play those artists more frequently because of their appearance. While that might happen naturally, it also might not (if, for instance, the band is one of many acts participating at some station-sponsored festival). The record companies state that their contracts with stations for such events make clear that there is no agreement that any artist appearance is tied to additional airplay for that artist.

The responses also reference settlements with the New York State Attorney General’s office of payola allegations that occurred over a decade ago. A number of radio companies and record labels entered into settlements with the Attorney General’s office and the radio companies also entered into consent decrees with the FCC to resolve issues raised in these investigations. One of those settlement agreements with the FCC is available here, and sets out very specific compliance conditions including:

Prohibiting stations and employees from exchanging airtime for cash or items of value except under certain circumstances;

Placing limits on gifts, concert tickets, and other valuable items from record labels to company stations or employees;

Appointing compliance officers who will be responsible for monitoring and reporting company performance under the consent decrees; and

Reviewing the specifics of these agreements is an important way for stations to ensure that they are not unintentionally running afoul of the payola rules. These conditions recognize that there is some interaction to be expected between record labels trying to expose their music and radio companies deciding what to play. But that needs to be done in a way that is limited to avoid the appearance that money or other items of valuable consideration decide what is played on a station – unless the audience is specifically informed that the programming is sponsored. With these issues back in the news, be sure to observe these limitations.

]]>https://www.broadcastlawblog.com/2020/04/articles/record-companies-respond-to-fcc-commissioner-on-payola-what-should-broadcasters-learn-from-the-responses/feed/0FCC Issues Guidance on TV License Renewals and Announces New Ownership Question on Radio Renewalshttps://www.broadcastlawblog.com/2020/04/articles/fcc-issues-guidance-on-tv-license-renewals-and-announces-new-ownership-question-on-radio-renewals/
https://www.broadcastlawblog.com/2020/04/articles/fcc-issues-guidance-on-tv-license-renewals-and-announces-new-ownership-question-on-radio-renewals/#respondFri, 24 Apr 2020 14:15:55 +0000https://www.broadcastlawblog.com/?p=7254Continue Reading…]]>The FCC issued public notices this week on the license renewal process for both radio and television operators. The Public Notice on television renewals was perhaps more significant, as it addressed several issues and procedures for the television renewal process which begins with the filing of renewals for stations located in Maryland, DC, Virginia and West Virginia, to be submitted to the FCC no later than June 1 of this year. The announcement reminds licensees that the application must be filed in the LMS database (where the new form should now be available) and must be accompanied by an EEO Form 2100 Schedule 396, reporting on the station’s hiring practices for the two years prior to the filing of the renewal. The notice also emphasizes the importance of the public inspection file – particularly the documents related to political broadcasting – urging TV stations to review their online public files now prior to filing their renewal application. See our articles here and here on fines issued last year to radio stations for deficiencies in their public files at the beginning of their renewal cycle, and our article here posted just yesterday about the FCC latest ruling about the political file obligations for all broadcast stations.

For radio, the recent Public Notice merely announces that the renewal form has been slightly revised to include a question certifying that the renewal applicant complies with the 2016 FCC multiple ownership rules. As we wrote in December, the Third Circuit decision overturned the FCC’s 2017 revision to its ownership rules (which, among other things, had abolished the broadcast-newspaper cross-ownership rules). As a result of the court’s decision, the FCC began to require that broadcasters include such a certification with their renewal applications. Until now, that certification was to be added in an exhibit, as the form did not specifically request that information. This public notice eliminates the need for the exhibit, as a question has now been added to the form regarding compliance with the ownership rules. It is interesting that this question has been added within a week of the FCC’s filing of a request with the Supreme Court seeking to overturn the Third Circuit decision (see our article here). But, while that petition is under consideration by the Supreme Court, the old ownership rules remain in effect.

For more on the license renewal process, see the webinar that I conducted for the Indiana Broadcasters earlier this year, available here. While specifically addressing stations in Indiana and discussing primarily radio issues as their renewal deadline was approaching, this webinar highlights issues that all broadcasters face when preparing for their license renewals. Of course, consult with your own attorney for advice on the renewal and specific issues that may affect your license renewal submission.

]]>https://www.broadcastlawblog.com/2020/04/articles/fcc-issues-guidance-on-tv-license-renewals-and-announces-new-ownership-question-on-radio-renewals/feed/0FCC Issues First EEO Audit of 2020 Targeting 320 Radio and Television Stations – Reviewing the Basics of the FCC’s EEO Ruleshttps://www.broadcastlawblog.com/2020/02/articles/fcc-issues-first-eeo-audit-of-2020-targeting-320-radio-and-television-stations-reviewing-the-basics-of-the-fccs-eeo-rules/
https://www.broadcastlawblog.com/2020/02/articles/fcc-issues-first-eeo-audit-of-2020-targeting-320-radio-and-television-stations-reviewing-the-basics-of-the-fccs-eeo-rules/#respondFri, 07 Feb 2020 15:23:57 +0000https://www.broadcastlawblog.com/?p=7173Continue Reading…]]>The FCC yesterday released another of its regular EEO audit notices (available here), asking that approximately 240 radio stations and about 80 TV stations, and the station employment units (commonly owned stations serving the same area) with which they are associated, provide to the FCC (by posting the information in their online public inspection file) their last two year’s EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules. Audited stations must provide copies of notices sent to employment outreach sources about each full-time vacancy at the stations as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide, in response to the audit, information about how they self-assessed the performance of their EEO program. Stations that are listed in the audit notice have until March 23, 2020 to upload this information into their online public file.

The FCC has promised to randomly audit 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time. The license renewal cycle which began last year adds to the importance of this audit, as a broadcaster does not want a recent compliance issue to headline the record the FCC will be reviewing with its license renewal (see our article here about the license renewal cycle). So, whether you are on the list or not, this is a good time for broadcasters to review what is required by the FCC’s EEO rules.

Last summer, at the Wisconsin Association of Broadcasters annual convention, I did a presentation on the FCC requirements for EEO compliance. The slides from that presentation are available here. The FCC rules were designed to bring new people into broadcast employment positions – looking for broadcasters to recruit from outside the traditional broadcast networks when hiring new employees. Not only should broadcasters be reaching out to their consultants and employees for referrals, and using their own airwaves to promote openings, but they need to be using outreach sources that are designed to reach all groups within a community to notify members of these groups about the availability of open employment positions at a station. While the FCC used to require that outreach be made to a plethora of community groups, it has now recognized that online recruitment sources alone can reach the entire community (see our summary of that decision here) – but these sources need to be evaluated regularly to assure that they are in fact bringing in applicants for job openings from throughout a station’s employment area.

Stations need to keep the required documentation to demonstrate their hiring efforts, as the failure to have those documents can still lead to fines (see our article here). The documents should show not only the station’s hiring efforts in connection with job openings, but also the supplemental efforts that they have taken, even where they have not had job vacancies, to educate their community about broadcast employment and to train their employees to assume more responsibilities. Stations should review their policies to make sure that they have the documentation to meet an FCC audit to make sure that the station’s EEO program is regularly bringing in recruits from diverse sources and that the station has done the required non-vacancy specific educational efforts on broadcast employment.

The FCC itself, when it abolished the FCC Form 397 EEO Mid-Term Report, promised to review the effectiveness of its EEO rules. A Notice of Proposed Rulemaking looking at how to make the program was released last year, bringing in some interesting proposals (see our article here). The proposals made in that proceeding are likely going to require further public comment before they can be adopted so, for now, the rules as they are remain in effect. As EEO enforcement was last year transferred to the FCC’s Enforcement Bureau (see our article here), we can expect that enforcement will be vigorous.

Consult with your attorneys to get a thorough understanding of the EEO rules and talk with the employees involved in employment matters at your station to make sure that they understand what they should be doing and are keeping the paperwork necessary to demonstrate your compliance with the rules. The FCC continues to enforce its rules and impose fines on stations that cannot demonstrate compliance, so make sure that you comply with the FCC’s obligations on EEO matters.

]]>https://www.broadcastlawblog.com/2020/02/articles/fcc-issues-first-eeo-audit-of-2020-targeting-320-radio-and-television-stations-reviewing-the-basics-of-the-fccs-eeo-rules/feed/0Did You Know that There is a Rule that Broadcasters Have to Tell Their Audience that a Program Is Recorded When It Seems to Be Live? – FCC Sends a $50,000 Reminderhttps://www.broadcastlawblog.com/2020/01/articles/did-you-know-that-there-is-a-rule-that-broadcasters-have-to-tell-their-audience-that-a-program-is-recorded-when-it-seems-to-be-live-fcc-sends-a-50000-reminder/
https://www.broadcastlawblog.com/2020/01/articles/did-you-know-that-there-is-a-rule-that-broadcasters-have-to-tell-their-audience-that-a-program-is-recorded-when-it-seems-to-be-live-fcc-sends-a-50000-reminder/#respondThu, 30 Jan 2020 13:45:49 +0000https://www.broadcastlawblog.com/?p=7164Continue Reading…]]>Did you know that the FCC has a rule that requires that a broadcaster notify its audience that a program has been pre-recorded when the program “creates the impression” that it is live? Probably many broadcasters had forgotten about that rule (if they ever knew it existed). This week the FCC’s Enforcement Bureau entered into a Consent Decree with Salem Media Group, in which Salem agreed to pay a $50,000 penalty and set up a monitoring and compliance plan for 3 years, after admitting that it violated this FCC rule. The Enforcement Bureau specifically states that the action “will send a signal to the industry that the Commission remains vigilant in its duty to ensure that licensees adhere to the live broadcasting rule.” Consider yourself warned!

Section 73.1208 of the FCC’s rules requires broadcast stations to disclose to their audience that program material is prerecorded when “time is of special significance, or . . . [when] an affirmative attempt is made to create the impression that [the program material] is occurring simultaneously with the broadcast.” The program that led to the Enforcement Bureau action was called HealthLine Live, airing on Saturdays on over 20 Salem stations. The FCC, in its initial investigatory letter to Salem station KRLA(AM), the originating station (a letter available, as of the date of this article in the station’s public file), noted that because the word “Live” was in the title of the program, and because the program featured listener calls, the program gave the impression that it was being broadcast live. Reviewing the transcripts of the program provided by the licensee, it certainly seemed to convey the impression that the program was a live discussion of health issues.

The FCC began its investigation as a listener complained to the FCC that the program could not be live as the host had died before the program was broadcast. The program apparently continued to run for several months between the date that the listener stated that they originally heard the program after the host’s death and the date that the listener filed the complaint with the FCC.

In response to the FCC’s investigatory letter, the licensee admitted that the program was in fact prerecorded, and that the host was indeed dead. Because of the number of stations that broadcast the program, and the fact that only a handful of those stations mentioned to their listeners that the program was prerecorded, the FCC determined that a significant penalty was appropriate.

The rule requires that broadcasters notify their audience when a seemingly live program has in fact been prerecorded. That notification must come at the beginning of the program and be clear and understandable to the audience. On TV, the rule states that the notice can be given either visually or aurally. Commercials, promos and PSAs are exempt from the requirement.

With the warning provided by this case, broadcasters need to make sure to review all of their programming to be sure that they are not airing programs, or segments of programs (including any network programs), that appear to be live but are in fact not live, without providing notice to their listeners or viewers. Don’t re-run a talk show when the host is on vacation without mentioning that the program was recorded at an earlier date. Don’t include pre-taped phone calls in a program without providing notice that the calls have been prerecorded. If you include some live and some prerecorded calls in a program, disclose at the beginning of the program that portions of the program have been prerecorded. With the explicit warning that the FCC has provided in this Consent Decree, broadcasters need to be vigilant to avoid problems that can result in a costly lesson.

]]>https://www.broadcastlawblog.com/2020/01/articles/did-you-know-that-there-is-a-rule-that-broadcasters-have-to-tell-their-audience-that-a-program-is-recorded-when-it-seems-to-be-live-fcc-sends-a-50000-reminder/feed/0Looking Ahead to the Rest of 2020 – Potential Legal and Regulatory Issues For the Remainder of the Yearhttps://www.broadcastlawblog.com/2020/01/articles/looking-ahead-to-the-rest-of-2020-potential-legal-and-regulatory-issues-for-the-remainder-of-the-year/
https://www.broadcastlawblog.com/2020/01/articles/looking-ahead-to-the-rest-of-2020-potential-legal-and-regulatory-issues-for-the-remainder-of-the-year/#respondWed, 29 Jan 2020 04:35:36 +0000https://www.broadcastlawblog.com/?p=7162Continue Reading…]]>Most years, at some point in January, we look into our crystal ball and try to see some of the legal and regulatory issues likely to face broadcasters. We already provided a calendar of the routine regulatory filings that are due this year (see our Broadcaster’s Regulatory Calendar). But not on that calendar are the policy issues that will affect the regulatory landscape in the coming year, and into the future. This year, the biggest issue will no doubt be the November election. Obviously, broadcasters must deal with the many day-to-day issues that arise in an election year including the rates to be charged political candidates, the access to airtime afforded to those candidates, and the challenges associated with the content of issue advertising that non-candidate groups seek to transmit to the public. The election in November will also result in a President being inaugurated in just less than a year – which could signal a continuation of the current policies at the FCC or potentially send the Commission in a far different direction. With the time that the election campaigns will demand from Congress, and its current attention to the impeachment, Congress is unlikely to have time to tackle much broadcast legislation this year.

The broadcast performance royalty is one of those issues likely on hold this year. While it was recently re-introduced in Congress (see our article here), it is a struggle for any copyright legislation to get through Congress and, in a year like the upcoming one, moving a bill like the controversial performance royalty likely will likely not be high on the priorities of Congressional leaders. This issue will not go away – it will be back in future Congresses – so broadcasters still need to consider a long-term strategy to deal with the issue (see, for instance, our article here on one such strategy that also helps resolve some of the music royalty issues we mention later in this article).

At the FCC, one would think that political broadcasting issues, like the reconsideration request we wrote about here seeking changes in the FCC’s recent controversial decisions on the disclosure of all issues and candidates in every non-candidate ad, would be high on the list of issues to be considered. But political issues are also complex – October’s decision on issue ad disclosures took almost 3 years to be released, after a prior Media Bureau decision on the same issues was rescinded in early 2017. Thus, it would not be at all surprising if these issues don’t get resolved this year.

Many people expected that we would see ownership reform in 2020– especially for radio. Last year, the FCC started its Quadrennial Review to look at these issues. But the September decision of the Third Circuit (see our articles here, here and here), overturning changes made in 2017, may have clouded the potential for any changes in the ownership rules this year. These issues can be controversial in an election year. But we have in the past seen FCC ownership decisions in the lame-duck period after an election but before a Presidential inauguration, so stay alert to what happens in this area.

In the interim, license renewal applications will trudge on, with TV starting to file their renewals in June of this year (starting with stations in Maryland, DC, Virginia, and West Virginia). So far, the FCC has been judicious in issuing fines for public file violations disclosed in a license renewal application, only fining those stations who totally ignored their obligations (see our stories here and here). We are waiting for the FCC’s patience to end – and would not be surprised to see the FCC become stricter in policing these issues in the future.

What other issues have we seen the FCC take comments on but not yet resolve? EEO was one area that generated lots of comments earlier in 2019 (see, for instance, our article here). But, with the FCC’s rulemaking notice being so general in its questions, and many of the proposals made in the proceeding so specific, if anything happens out of the proceeding, the most likely action would seem to be a further notice of a proposed rulemaking to give parties notice of any specific proposals the FCC wants to pursue.

For television, ATSC 3.0 looks to become a reality this year as stations begin to roll out the new technology and ATSC 3.0-compatible television receivers become available at consumer electronics stores. On the regulatory front, the FCC still has some issues to resolve, including dealing with stations that cannot find a partner station to provide a “lighthouse signal” in the current digital technology when they are ready to convert to the new standard. The TV band will also shrink, as the repacking following the incentive auction concludes in July – with all TV stations moved into the channels below 37.

The oldest of the broadcasting services, AM, will also possibly be looking at its own digital conversion – though the FCC will have to move very fast to get it done this year. The proposal to allow AM stations to convert to full digital operations has been formally advanced through a notice of proposed rulemaking, with comments due March 9 and replies on April 6 (see our articles here and here). The issues seem relatively simple, and for a voluntary conversion, relatively noncontroversial. A decision before the end of the year is possible, though such quick action would require everything to fall into place just right.

Some of the biggest issues for broadcasters may come not from the FCC, but from other agencies or courts. As we wrote here and here, the Department of Justice is considering changes to the antitrust consent decrees that govern ASCAP and BMI. Should the DOJ review reach a conclusion and suggest a radical restructuring or abolition of the current system, Congress would almost assuredly have to step in to take action. We’ll be watching closely to see if any action comes from the DOJ this year.

BMI is currently in rate court litigation with the Radio Music License Committee over the rates that radio stations should pay for the use of BMI music. That proceeding could result in higher fees for radio broadcasters. SESAC’s three-year license with the radio industry (see our article here) has also expired, meaning that if no new rates can voluntarily be arrived at, their rates will be decided by an arbitration panel. SESAC has added some new songwriters (including Adele), so you can be sure that they will want more money from the radio industry. And, of course, the litigation with GMR goes on, though it may not be concluded this year.

What will be concluded before the end of the year is the new rates that webcasters (including broadcasters who stream their audio signal on the Internet) will pay SoundExchange for the right to publicly perform sound recordings on a digital platform for the period from 2021 through 2025. The Copyright Royalty Board is currently considering proposals from music services and SoundExchange for new rates – SoundExchange looking for a significant increase while the services are looking for a decrease. A trial is scheduled for March, with a decision required by law before the end of the year.

With the election coming in November, the prospects for other “big” issues being tackled this year seem to be less than in most years. We have noted (see, for instance, or articles here and here), that the FCC has been very active in enforcing the rules that it does have – which may be a safe political course for it to pursue but one fraught with potential dangers for broadcasters and other regulated entities. But each year issues come up that surprise us, so watch the FCC releases, the trade press, this blog and others like it, and be ready for whatever regulatory issues may come your way in 2020.

]]>https://www.broadcastlawblog.com/2020/01/articles/looking-ahead-to-the-rest-of-2020-potential-legal-and-regulatory-issues-for-the-remainder-of-the-year/feed/0FCC Commissioner Asks Record Labels for Information About Payola Practices – What are the FCC Rules? How Do These Practices Compare to Online Music Providers?https://www.broadcastlawblog.com/2020/01/articles/fcc-commissioner-asks-record-labels-for-information-about-payola-practices-what-are-the-fcc-rules-how-do-these-practices-compare-to-online-music-providers/
https://www.broadcastlawblog.com/2020/01/articles/fcc-commissioner-asks-record-labels-for-information-about-payola-practices-what-are-the-fcc-rules-how-do-these-practices-compare-to-online-music-providers/#respondMon, 27 Jan 2020 16:52:34 +0000https://www.broadcastlawblog.com/?p=7160Continue Reading…]]>Last week, FCC Commissioner Michael O’Rielly was in the news for sending a letter to the major record labels asking for information about their practices in paying broadcast stations for airing the label’s music. The letter follows correspondence last year between the Commissioner and the RIAA (the Recording Industry’s trade group) asking for similar information, which the RIAA claimed that it did not have. This process began after a Rolling Stone magazine article suggested that “payola” was still a common practice in the broadcast industry. These actions, and the press reports that followed, raise a couple of interesting questions including what the FCC rules are on payola, and how broadcast practices compare to those of online companies.

The Communications Act prohibits the practice of “payola” by requiring, in Section 317, that when any content is aired on a station in exchange for anything of value, the station must disclose that “consideration” has been paid by the person or entity that pays for the consideration. Thus, “payola” arises when a broadcast station employee or contractor receives or is promised anything of value in return for putting any content on the air, and that payment is not disclosed to the public. Payola usually occurs when someone makes a gift or payment to a person involved in station programming (i.e., station employees, program producers, program suppliers) in exchange for favorable on-air exposure of a product or service. While the term “payola” is most often associated with the receipt by a station announcer or music director of money, trips or other value for playing songs on the station, the same prohibition applies whenever any station programming personnel receive anything of value in exchange for airing any content where a sponsorship identification is not broadcast. For examples of fines for airing programming for which consideration was received without acknowledging the receipt of valuable consideration, outside the context of music, see our articles here, here and here.

Section 317 requires that stations take actions to ensure that their employees and program suppliers disclose consideration received for airing program content. Most radio stations do this through routine distribution to their employees of payola policies, and in many cases getting affidavits from employees acknowledging that they have received information about the FCC requirements and understand the obligations.

Note that payola only exists where there is no disclosure of the receipt of something of value for the on-air content. Payola is not an issue when full disclosure is made. It is the lack of sponsorship disclosure that makes the transaction illegal. Thus, a station is not in violation of the rules, even if it is paid to air songs or program segments, if on-air disclosure of the payment or other consideration is made. The disclosure is supposed to be made at the time that the sponsored material is aired.

While payola (playing music for consideration without disclosing the consideration) may be illegal for broadcasters, the Commissioner notes in his letter that some have requested that this prohibition be reexamined in light of the current state of the marketplace, where broadcasters are competing against other distributors of programming who may not be subject to such rules. While there are general obligations to disclose consideration for material transmitted for consideration via Internet platforms, those obligations are far less stringent than those of broadcasters (obligations for online platforms include general sponsorship disclosure obligations imposed by the FTC, see our article here, and state laws may apply to online platforms, see our article here). Those disclosure obligations are often met in disclosures that are less obvious than those that are required of broadcasters. If one looks, for instance, at the terms of service for online music platforms, there are statements that acknowledge that some may be receiving consideration for their music selections, but these are often very general statements buried in the site’s terms of use. There is, for instance, this disclosure on one music service’s site:

In any part of the [NAME OF SERVICE] Service, the Content you access, including its selection and placement, may be influenced by commercial considerations, including [SERVICE’S] agreements with third parties.

While the standards may be different from those that apply to their online competition, right now, for broadcasters, they are still strict. Broadcasters should ensure that they are educating their staffs about the obligations to identify when on-air content has been sponsored so that the proper disclosures can be made. As violations of these requirements can result not only in FCC fines but also in criminal actions (see 47 U.S.C. Section 507), knowing the rules is very important. This article provides just a snapshot of those rules – study them in detail and talk with your counsel about the obligations they impose to avoid the potentially serious consequences that can result if they are not followed.

]]>https://www.broadcastlawblog.com/2020/01/articles/fcc-commissioner-asks-record-labels-for-information-about-payola-practices-what-are-the-fcc-rules-how-do-these-practices-compare-to-online-music-providers/feed/0FCC Consent Decree Requires $1,130,000 Payment to Settle Issues About Monitoring Tower Lights – Are You Doing What’s Required?https://www.broadcastlawblog.com/2020/01/articles/fcc-consent-decree-requires-1130000-payment-to-settle-issues-about-monitoring-tower-lights-are-you-doing-whats-required/
https://www.broadcastlawblog.com/2020/01/articles/fcc-consent-decree-requires-1130000-payment-to-settle-issues-about-monitoring-tower-lights-are-you-doing-whats-required/#respondThu, 16 Jan 2020 15:52:07 +0000https://www.broadcastlawblog.com/?p=7147Continue Reading…]]>Earlier this week, the FCC’s Enforcement Bureau released an Order approving a consent decree with Scripps Broadcasting where Scripps agreed to pay a penalty of $1,130,000 for perceived violations of the FCC’s rules requiring tower light monitoring for towers used by a number of TV stations that it had recently purchased. The company also agreed to adopt numerous procedures to insure continuing compliance, including notification to the FCC of future issues. The FCC began the investigation when a plane crashed into one station’s tower. While the FCC specifically states that it did not find any evidence that any of the “irregularities” in the tower monitoring process contributed to the plane crash, the crash opened the door to the FCC’s investigation of the company’s tower light monitoring process at all of its stations, leading to this fine. Are you ready for such an investigation?

In the consent decree, the Commission cites various tower-related FCC rules that must be observed by tower owners. The rules include Section 17.47(a), which requires antenna structure owners to monitor the status of a structure’s lighting system by either (1) making “an observation of the antenna structure’s lights at least once each 24 hours either visually or by observing an automatic properly maintained indicator designed to register any failure of such lights” or (2) by “provid[ing] and properly maintain[ing] an automatic alarm system designed to detect any failure of such lights and to provide indication of such failure to the owner.” That rule also requires that the tower owner inspect any automatic monitoring system at least once every 3 months to make sure that it is working correctly, unless the owner is using a system certified as reliable and not requiring such inspection by the Wireless Bureau of the FCC (see our articles here and here where FCC fines were issued when monitoring systems did not alert the tower owner of tower lighting issues).

The rules also require that the tower owner keep records of the required monitoring, including any instances where any required lighting is not operating (noting when the outage occurred and when it was repaired, and when FAA notice was provided). The FCC rules also require prompt notification to the FAA when certain lights have stopped operating – obviously so that the FAA can notify aircraft operating in the vicinity of the tower.

Part 17 of the rules also sets out painting requirements for towers, and requirements that many towers be registered with the FCC. In fact, in the Scripps case, part of the fine was based on Scripps’ failure to notify the FCC of the ownership change of some of the towers as required by the FCC tower registration rules (see our posts here and here about other fines for this violation).

One article like this cannot possibly set out all the tower lighting, painting, and monitoring rules. But the severity of the sanctions in this case demonstrates the obvious importance of these rules – and the need for each broadcaster to carefully review these rules and make sure that they are strictly complying with all of the requirements. Because of the safety risks, the FCC takes tower maintenance requirements very seriously (see our post here where we wrote about a notification from the FCC to tower owners that paying penalties was “not just a cost of doing business” but much more serious). Even companies that are merely leasing tower space have responsibilities to notify the FCC and FAA if their lessor is not performing its responsibilities to maintain the tower (see our post here). The risk of non-compliance is not only penalties like the one assessed in this case, but also potential civil liability in cases where there are incidents like the situation that started the investigation. Take your responsibilities seriously.